NAFAR CHANDRA PAL CHOUDHURY Vs. JATINDRA NATH DAS

JUDGEMENT

(1.) This appeal has arisen out of a suit for rent. The plaintiffs landlords are the appellants in the appeal. In order to appreciate the contentions that have been urged in the case, it is necessary to set out the pleadings somewhat in detail.

(2.) The plaintiffs instituted the suit for recovery of rent on the allegation that they were 12 annas 16 gandas cosharer landlords and that the defendants were holding certain lands under them in utbandi system. In the plaint, certain rates were mentioned as being the rates of rent payable by utbandi tenants in respect of different kinds of land and a decree for rent was prayed for on the footing that separate collections used to be made on behalf of the plaintiffs from those defendants. The main defence of the defendants was to the effect that some of the lands in suit were patit, khicha and a3ha lands, that no rent was payable for patit lands, that the rate for the khicha lands was 8 annas per bigha and that the rate for the asha lands was 6 pies per bigha. The trial Court held that the evidence that was produced on behalf of the plaintiffs for the purpose of establishing the rates at which they claimed rent in respect of the lands in suit was not satisfactory and, being of opinion that the defendants had succeeded in establishing that no rent was payable for the patit lands and that the rates for the khicha and the asha lands were what were stated in the written statement, the learned Munsiff gave the plaintiffs a decree on the defendants admission. This decree was upheld on appeal by the learned Subordinate Judge and, on a second appeal being preferred to this Court, my learned brother Mitter, J. has affirmed that decision. The plaintiffs have thereupon preferred the present appeal under the Letters Patent.

(3.) Of the two grounds that have been urged in support of the appeal, one is to the effect that the plaintiffs are entitled to a decree for fair and equitable rent as against the defendants, inasmuch as the defendants by holding the lands for a continuous period of twelve years have acquired a right of occupancy and that, therefore, under the provisions of Section 24, Ben. Ten. Act, they are liable to pay a fair and equitable rent. This contention has been dealt with by my learned brother Mitter, J. as well as by the Courts below and has been held as being answered by the provisions of Secs.180-A and 180-B, Ban. Ten. Act. It appears that the suit was not based upon an allegation to the effect that the plaintiffs were entitled to get fair and equitable rent from the defendants inasmuch as they were no longer utbandi tenants but had acquired a right of occupancy. Such a contention did not appear in the pleadings and it was only at the time of the argument in the trial Court that it was put forward. The Courts below, however, have dealt with this matter and, inasmuch as it has been argued before us, I may as well express my opinion upon it.